Smt. Ram Sakhi Devi v. Chhatra Devi, (SC)
BS100975
SUPREME COURT OF INDIA
Before:- Arijit Pasayat and S.H. Kapadia, JJ.
Civil Appeal No. 3608 of 2005 (Arising out of SLP(C) No. 4922/2003). D/d.
12.7.2005.
Smt. Ram Sakhi Devi - Appellant
Versus
Chhatra Devi and others - Respondents
For the Appellant :- D.K. Thakur and Debasis Misra, Advocates.
For the Respondents :- Krishna Prasad, Sanjay R. Hegde, S.K. Verma and N.S. Bisht, Advocates.
Civil Procedure Code, Section 100 - Substantial question of law - Second appeal decided by High Court without formulating substantial question of law - Order set aside - Matter remitted to the High Court for disposal in accordance with law - The mandate of Section 100(3) Civil Procedure Code is that memorandum of appeal shall precisely state substantial question or questions of law involved in the appeal - Where the High Court is satisfied that in any case any substantial question of law is involved it shall formulate that question under sub-section (4) and the second appeal has to be heard on the question so formulated as stated in sub-section (5) of Section 100.
[Para 3]
Cases Referred :-
Ishwar Dass Jain v. Sohan Lal, (2000(1) SCC 434) : 2000(1) RCR (Civil) 168 : 1999(2) RCR (Rent) 714.
Kanhaiyalal v. Anupkumar, (JT 2002(10) SC 98) : 2003(1) RCR (Civil) 293.
R. Lakshmi Narayan v. Santhi, (2001(4) SCC 688) : 2001(3) RCR (Civil) 192.
M.S.V. Raja v. Seeni Thevar, (2001(6) SCC 652) : 2001(4) RCR (Civil) 669.
R.V.E. Ventatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, (2003(8) SCC 752) : 2003(4) RCR (Civil) 705 : 2003(2) RCR (Rent) 579.
Md. Mohammad Ali (dead) by Lrs. v. Jagadish Kalita, (2004(1) SCC 271).
Chadat Singh v. Bahadur Ram, (JT 2004(6) SC 296) : 2004(3) RCR (Civil) 781.
Kishori Lal v. Madan Gopal (d) by Lrs., JT 2004(8) SC 422.
Mathakala Krishnaiah v. V. Rajagopal, (2004(10) SCC 676) : 2005(2) RCR (Civil) 741 SC.
Roop Singh (Dead) through LRs. v. Ram Singh (Dead) through LRs. (2000(3) SCC 708) : 2000(2) RCR (Civil) 592 : 2000(1) RCR (Rent) 427 SC.
Thakur Kishan Singh v. Arvind Kumar, 1995(1) RRR 561 (SC) : (1994(6) SCC 591).
JUDGMENT
Arijit Pasayat, J. - Leave granted.
Appellant calls in question legality of the judgment rendered by a learned Single Judge of the Patna High Court in Second Appeal in terms of Section 100 of the Civil Procedure Code, 1908 (in short the 'Code'). The respondents are the legal heirs of the original plaintiff-Ishraj Narayan Singh. The original plaintiff filed a suit seeking declaration of his title over the suit land and declaration of want of title of Smt. Ram Sakhi Devi, the appellant herein, the defendant No. 3 in the suit. The trial Court had decreed the suit but in appeal the First Appellate Court reversed it. The respondents filed the second appeal before the Patna High Court. By the impugned judgment the High Court restored the judgment and decree of the trial Court and set aside the judgment and decree of the First Appellate Court.
2. Though many points were urged in support of the appeal, the pivotal plea was that the High Court could not have interfered with the judgment and decree of the First Appellate Court without framing a substantial question of law as enjoined by Section 100 of the Code. The High Court can only exercise its jurisdiction under Section 100 of the Code in Second Appeal on the basis of substantial question of law framed at the time of admitting appeal. A Second Appeal can be heard and decided only on the basis of substantial question of law, if any. The judgment rendered by the High Court in Second Appeal without following the aforesaid procedure is not sustainable in law.
3. Learned counsel for the respondents on the other hand submitted that the question of law is self evident and on a technical plea that a question of law has not been framed, the well reasoned judgment should not be set aside.
4. As mandated by sub-section (3) of Section 100 of the Code, the memorandum of appeal shall precisely state substantial question or questions of law involved in the appeal. Where the High Court is satisfied that in any case any substantial question of law is involved it shall formulate that question under sub-section (4) and the second appeal has to be heard on the question so formulated as stated in sub-section (5) of Section 100.
Section 100 of the Code deals with "Second Appeal". The provision reads as follows :
"Section 100 - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this Section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
5. A perusal of the impugned judgment passed by the High Court does not show that any substantial question of law has been formulated or that the second appeal was heard on the question, if any, so formulated. That being so, the judgment cannot be maintained.
6. In Ishwar Dass Jain v. Sohan Lal, (2000(1) SCC 434) : 2000(1) RCR (Civil) 168 : 1999(2) RCR (Rent) 714, this Court in para 10, has stated thus :
"10. Now under Section 100 Civil Procedure Code, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate Court without doing so."
7. Yet again in Roop Singh (Dead) through LRs. v. Ram Singh (Dead) through LRs. (2000(3) SCC 708) : 2000(2) RCR (Civil) 592 : 2000(1) RCR (Rent) 427 SC, this Court has expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads:
"7. It is to be reiterated that under Section 100 Civil Procedure Code jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC. That apart, at the time of disposing of the matter the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further, the fact findings Courts after appreciating the evidence held that the defendant entered into the possession of the premises as a batai, that is to say, as tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by the two Courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession (Thakur Kishan Singh v. Arvind Kumar, 1995(1) RRR 561 (SC) : (1994(6) SCC 591). Hence the High Court ought not to have interfered with the findings of fact recorded by both the Courts below."
8. The position has been reiterated in Kanhaiyalal and others v. Anupkumar and others, (JT 2002(10) SC 98) : 2003(1) RCR (Civil) 293.
9. Reference may also be also be made to R. Lakshmi Narayan v. Santhi, (2001(4) SCC 688) : 2001(3) RCR (Civil) 192, M.S.V. Raja and another v. Seeni Thevar and others, (2001(6) SCC 652) : 2001(4) RCR (Civil) 669, R.V.E. Ventatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and another, (2003(8) SCC 752) : 2003(4) RCR (Civil) 705 : 2003(2) RCR (Rent) 579, Md. Mohammad Ali (dead) by Lrs. v. Jagadish Kalita and others, (2004(1) SCC 271) and Chadat Singh v. Bahadur Ram and others, (JT 2004(6) SC 296) : 2004(3) RCR (Civil) 781 Kishori Lal and another v. Madan Gopal (d) by Lrs. and others, (JT 2004(8) SC 422) and Mathakala Krishnaiah v. V. Rajagopal, (2004(10) SCC 676) : 2005(2) RCR (Civil) 741 SC.
In the circumstances, the impugned judgment is set aside. We remit matter to the High Court for disposal in accordance with law. The appeal is disposed of in the aforesaid terms with no order as to costs.
Appeal allowed.